Barry v. Bowdle

MILO BARRY, Appellant, v. R. S. BOWDLE et al., Respondents.

COUNSEL

Milo Barry, in pro. per., for Appellant.

Robert W. Kenny, Attorney General, and Bayard Rhone, Deputy Attorney General, for Respondents. [69 Cal. App. 2d 722]

OPINION

McCOMB, J.

These are two motions.

(1) A motion of appellant to dismiss respondent's motion upon the ground that the clerk of the superior court did not furnish appellant with an estimate of the cost of preparing a transcript.

(2) A motion by respondent to dismiss the appeal upon the ground that appellant has failed within the time provided by law to have prepared and certified to this court a record on appeal.

[1] It appears from the certificate of the clerk of the superior court that notice of appeal and notice to the clerk to prepare a transcript were filed by appellant on March 29, 1945; that pursuant to the provisions of rule 5 of Rules on Appeal, a notice by the clerk of the superior court designating the estimate of the cost for the preparation of the clerk's transcript was mailed April 9, 1945, to appellant at 14653 Roscoe Boulevard, Van Nuys, California (the address of appellant), and that no arrangements were ever made with the clerk for the payment of said cost to and including the fifth day of June, 1945.

In view of the foregoing facts, there is no merit in appellant's motion attacking the motion to dismiss the appeal filed by respondent, since it appears from the record that the clerk in fact mailed appellant notice of the estimated cost of preparing a record on appeal and appellant did not within ten days after notification by the clerk make arrangements for the payment of such cost. (Rules on Appeal, rule 5(c).)

[2] It is likewise evident that since appellant has not made the necessary arrangements for the payment of the cost of obtaining a transcript within the time allowed, the appeal should be dismissed pursuant to the provisions of rule 10(a) fn. *, Rules on Appeal.

For the foregoing reasons (1) appellant's motion to dismiss respondent's motion is denied and (2) respondent's motion to dismiss the appeal is granted.

Moore, P. J., concurred.

FN *. Rule 10 (a), Rules on Appeal reads in part as follows:

"If the appellant shall fail to perform any act necessary to procure the filing of the record or to pay the filing fee within the time allowed therefor or within any valid extension of that time, and such failure is the fault of the appellant and not of any court officer or any other party, the appeal may be dismissed on motion of the respondent or on the reviewing court's own motion."